Software patent directive back in motion

Continental drift

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The European Parliament re-opened the debate on the future of the EU's directive on software patents, last week. Arguments for and against the bill took the lines we have come to expect from each side: the pro-patent lobby arguing that the directive merely formalises the status quo, and the anti-patent contingent arguing that patenting software is like trying to patent music or mathematics.

According to Florian Muller, ex-head of anti-patent group No Software Patents, told us: "The first debate in the Legal Affairs Committee on Thursday showed that the official rapporteur on this directive, Michel Rocard MEP (a former prime minister of France), and various other MEPs really want to help and restrict the scope of patentability but they face stiff opposition."

When the original draft of the directive went to Parliament for its first reading in 2003, MEPs made several significant changes to the text. They limited the scope of what could be patented to software that supported new physical processes, such as steel-making, or a new anti-lock braking system.

However, the Council of Ministers, under the Irish presidency, voted to reject these changes, and returned the draft almost to its original form. Critics say the current for of the directive allows for direct software patentability of computer programs, data structures and process descriptions, areas the MEPs had voted off the agenda.

In last week's debate, Irish MEP Brian Crowley was among those opposing any amendments to the council's text, arguing that smaller companies benefit as much as larger ones. He said that in the US, 92 per cent of patents have been granted to SMEs. Germany's Erika Mann said that the Parliament needs to be flexible, and stressed that there are some good articles within the directive as it stands.

Finnish MEP Piia-Noora Kauppi agreed that the Parliament should not exclude all software from patentability, but argued in favour of new amendments. Kauppi also accused the bill's supporters of overstating the negative effects of the changes Parliament made in 2003. (see transcripts of the session here.

Amendments must be tabled by early May, and JURI (the group responsible for proposing any amendments to the directive) will meet again to discuss the changes at the end of that month. The directive's official rapporteur, Michel Rocard, wrapped the session by scheduling a vote on the directive for 20 June before it moves to a plenary vote in Strasbourg, in July.

The Foundation for a Free Electronic Infrastructure (FFII) warns that the main danger now is that there will not be enough MEPs in Parliament to approve any changes.

Although passing amendments during a second reading is more difficult - it requires an absolute majority vote - according to Joe McNamee, EU policy director at the Political Intelligence consultancy, it happens fairly often.

"The point here is that the Parliament could simply adopt the amendments that it knows the Council won't accept and just stick with them - meaning that the Directive will ultimately fall. The Parliament already said that the Directive should be redrafted, so that would be the logical thing for them to do, unless they've changed their minds," he said. ®